Reporter's Explanation of Changes
Ethics 2000 Commission Draft for Public Comment
March 23, 1999
TEXT:
1. Addition of new paragraph (c) defining "informed consent"
The Commission recommends that throughout the Rules, the phrase "consent after consultation" be replaced with "gives informed consent." The Commission believes that "consultation" is a term that is not well understood and does not sufficiently indicate the extent to which clients must be given adequate information and explanation in order to make reasonably informed decisions. The term 'informed consent," which is familiar from its use in other contexts, is more likely to convey to lawyers what is required under the Rules. The definition is largely based on 31 of the Restatement.
The Commission further recommends that the definition be placed in Rule 1.4 rather than the Terminology section in order to give it a more prominent placement. Rule 1.4 relates generally to lawyer communication with clients, and thus it is appropriate that the new definition be placed under that rule.
COMMENT:
No change was made in Comments [1] - [3].
Withholding Information
[4] This Comment has been amended to clarify that lawyers may not withhold information from a client to serve the interests of other persons, including other clients of the lawyer. No change in substance is intended.
Informed Consent
[5] This new Comment provides cross-references to Rules requiring the lawyer to obtain the informed consent of the client or another person within the meaning of this Rule. It also expands on the requirements of lawyer communication under the Rule.
[6] This new Comment explains what is required in order to constitute a manifestation of consent by the client.